The EB-5 Immigrant Investor Program provides a pathway to US permanent residence (Green Card) through qualified investment in the American economy. Established by Congress in 1990 under the Immigration Act, the program attracts foreign capital to stimulate job creation and economic growth in the United States.

Administered by US Citizenship and Immigration Services (USCIS), the EB-5 program operates under the employment-based fifth preference visa category. The program was significantly reformed through the EB-5 Reform and Integrity Act of 2022 (RIA), which introduced enhanced oversight, visa set-asides for specific investment categories, and updated investment thresholds.

Program Overview

The EB-5 program operates as a conditional residency pathway. Foreign investors who meet the capital investment and job creation requirements receive conditional permanent resident status for an initial two-year period. After demonstrating sustained investment and job creation, investors file to remove conditions and obtain unconditional permanent residence.

The program serves dual objectives: providing foreign nationals with a path to US residency while directing capital toward American businesses and job creation. The EB-5 Reform and Integrity Act of 2022 introduced substantial integrity measures, including enhanced due diligence requirements, increased transparency for regional centers, and designated visa allocations for rural and high-unemployment areas.

Investment Requirements

The EB-5 program requires investors to commit capital at risk in a qualifying new commercial enterprise. Investment amounts are adjusted for inflation every five years based on the Consumer Price Index for All Urban Consumers (CPI-U). The current minimum investment thresholds, effective as of the EB-5 Reform and Integrity Act implementation, are calibrated to economic conditions and project location.

Capital Source Requirements

Investors must demonstrate that investment capital was obtained through lawful means. USCIS requires comprehensive documentation tracing the path of funds from their original source to the US commercial enterprise. Acceptable sources include business earnings, asset sales, inheritance, gifts, and loans secured by the investor's own assets.

The capital must be invested in a tangible new commercial enterprise, defined as any for-profit organization formed in the United States for the ongoing conduct of lawful business. This includes sole proprietorships, partnerships, corporations, joint ventures, holding companies with wholly owned subsidiaries, business trusts, and limited liability companies.

Targeted Employment Areas (TEA)

Targeted Employment Areas represent geographic regions designated by USCIS where foreign investment is particularly encouraged to stimulate economic development and job creation. The EB-5 Reform and Integrity Act transferred TEA designation authority exclusively to USCIS, removing state designation powers and establishing standardized criteria.

Rural TEA Criteria

A rural TEA is defined as an area that meets all of the following criteria, based on the most recent decennial US Census data:

• Located outside any metropolitan statistical area (MSA)
• Beyond the outer boundary of any city or town with a population of 20,000 inhabitants or more
• Population density consistent with rural classification

Rural TEA investments receive substantial benefits under the RIA, including priority processing for Form I-526E petitions, allocation of 20% of annual EB-5 visas specifically for rural investments, and reduced investment threshold of $800,000.

High Unemployment TEA Criteria

A high unemployment TEA is defined as an area with an unemployment rate of at least 150% of the national average unemployment rate. Under the RIA, high unemployment TEAs are determined based on:

• The census tract where the new commercial enterprise is principally doing business
• Any or all directly adjacent census tracts
• Current unemployment data from the US Bureau of Labor Statistics

High unemployment TEAs receive 10% of the annual EB-5 visa allocation through the reserved visa category. The reduced investment threshold of $800,000 applies to projects in high unemployment areas.

Infrastructure Projects

Infrastructure projects constitute a separate category eligible for the $800,000 investment threshold and 2% visa set-aside. An infrastructure project is defined as a capital investment project administered by a governmental entity (federal, state, or local agency) that is the job-creating entity contracting with a regional center to receive EB-5 capital for maintaining, improving, or constructing public works projects.

Investment Pathways: Standalone vs Regional Center

The EB-5 program provides two distinct investment pathways, each with specific requirements, benefits, and operational structures.

Standalone Investment Pathway

The standalone pathway (also called direct EB-5) requires the investor to establish or invest in a new commercial enterprise independent of a regional center. Standalone investors must create 10 direct full-time jobs within the new commercial enterprise or its wholly owned subsidiaries.

Direct jobs establish an employer-employee relationship between the new commercial enterprise and the persons it employs. Under regulations effective March 15, 2022, pooled investments with multiple EB-5 investors are only permitted through the regional center program. Each standalone investor must independently meet the full job creation requirement.

Standalone investors typically maintain greater involvement in the management and daily operations of the commercial enterprise. The pathway does not require regional center approval or compliance with regional center reporting requirements.

Regional Center Investment Pathway

The Regional Center Program, reauthorized through the EB-5 Reform and Integrity Act, allows investors to pool capital with other funding sources for investment in USCIS-approved regional centers. Regional centers are entities designated by USCIS based on proposals for promoting economic growth through increased domestic capital investment, improved regional productivity, job creation, and increased domestic capital investment.

Regional center investors may fulfill up to 90% of the job creation requirement through indirect and induced jobs. Indirect jobs are positions held outside the new commercial enterprise but created as a result of the investment, demonstrated through reasonable economic methodologies. Induced jobs result from employees' spending on consumer goods and services.

The RIA introduced substantial regional center oversight requirements, including annual reporting obligations, monitoring and compliance procedures, securities law compliance, and potential sanctions for non-compliance. Regional centers must pay annual fees ($20,000 for centers with more than 20 investors; $10,000 for those with 20 or fewer investors) to finance the EB-5 Integrity Fund.

Job Creation Requirements

Each EB-5 investment must create or preserve a minimum of 10 full-time jobs for qualifying employees. A qualifying employee is a US citizen, lawful permanent resident, or other immigrant authorized to work in the United States (excluding the investor, the investor's spouse, and the investor's children).

Full-Time Employment Definition

Full-time employment means employment requiring a minimum of 35 hours of service per week. The position must be permanent and indefinite in duration, not temporary or seasonal. Multiple part-time positions may be combined to equal one full-time equivalent position only if the individual employees share the work time.

Direct Job Creation

Direct jobs establish an employer-employee relationship between the new commercial enterprise and the persons it employs. For standalone investments, all 10 required positions must be direct jobs. For regional center investments, direct jobs are those created within the new commercial enterprise or its wholly owned subsidiaries.

Indirect Job Creation

Indirect jobs are positions held outside the new commercial enterprise but created as a result of the investment. These include jobs in supplier industries and other sectors that receive economic benefit from the new commercial enterprise's operations. Regional center investors may count up to 90% of the job requirement from indirect employment.

Indirect job calculations must use reasonable methodologies accepted by USCIS, such as input-output models (IMPLAN, RIMS II) that demonstrate economic multiplier effects. For construction activity, indirect jobs created by construction lasting less than two years may satisfy up to 75% of the job creation requirement.

Job Preservation for Troubled Businesses

In cases where the new commercial enterprise is a troubled business, the investor may rely on job maintenance rather than job creation. A troubled business is defined as an enterprise that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period before the priority date on the investor's Form I-526.

For troubled business investments, the investor must show that the number of existing employees is maintained at no less than the pre-investment level for a period of at least two years. The job preservation approach does not reduce the overall employment requirement of 10 positions.

Application Process

The EB-5 application process comprises multiple sequential stages, each requiring specific documentation and USCIS approval before proceeding to the next step.

Step 1: File Form I-526 or I-526E

The process begins with filing Form I-526 (Immigrant Petition by Standalone Investor) or Form I-526E (Immigrant Petition by Regional Center Investor) with USCIS. The petition must demonstrate that the investor meets all EB-5 classification requirements, including:

• Capital has been or is in the process of being invested in the required amount
• Capital was obtained through lawful means with full documentation of source
• Investment is in a qualifying new commercial enterprise
• Valid business plan demonstrates job creation or preservation
• Investment meets TEA requirements if claiming reduced threshold

The current filing fee for Forms I-526 and I-526E is $3,675 per petition. Separate fee payments are required for each accompanying form if filed concurrently.

Step 2: Visa Processing or Adjustment of Status

Upon I-526/I-526E approval, investors proceed through either consular processing (if residing outside the United States) or adjustment of status (if lawfully present in the United States).

For consular processing, the approved petition transfers to the National Visa Center (NVC), which assigns a case number. When the investor's priority date becomes current according to the monthly Visa Bulletin, NVC instructs the applicant to complete Form DS-261 and submit required immigrant visa documents and fees.

For adjustment of status, investors file Form I-485 (Application to Register Permanent Residence or Adjust Status) with USCIS. Under the RIA's concurrent filing provision, eligible investors may file Form I-485 simultaneously with Form I-526/I-526E when visa numbers are immediately available, allowing for work and travel authorization while the petition is pending.

Step 3: Conditional Permanent Residence

Upon approval of the adjustment application or admission to the United States with an EB-5 immigrant visa, USCIS grants conditional permanent resident status to the investor and derivative family members. Conditional residence is valid for two years from the date of approval or admission.

During the conditional period, investors must maintain their investment in the commercial enterprise and fulfill the job creation requirements. The capital must remain at risk and invested in the new commercial enterprise for the duration of the conditional period.

Step 4: Remove Conditions (Form I-829)

Within the 90-day period immediately before the second anniversary of conditional residence, investors must file Form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status). The petition must demonstrate:

• Required capital was invested and maintained throughout the conditional period
• The new commercial enterprise was established and maintained as a commercial enterprise
• At least 10 full-time jobs were created or preserved for qualifying employees

Upon approval of Form I-829, USCIS removes the conditions and grants unconditional permanent resident status. The investor and derivative family members receive new Green Cards without conditional status notation.

EB-5 Visa Set-Asides

The EB-5 Reform and Integrity Act established a reserved visa system that allocates 32% of the annual EB-5 visa quota to specific investment categories. This structure addresses visa backlogs for investors from countries with high demand, particularly China and India.

Set-aside visas provide substantial advantages for investors from countries experiencing visa retrogression. When an investor qualifies for a set-aside category, they are eligible for visas from the designated allocation rather than competing in the unreserved category where backlogs may extend multiple years.

Any unused set-aside visas in a given fiscal year are retained in the same category for one additional year. If visas remain unused after the second year, they transfer to the unreserved EB-5 category in the third year.

Family Inclusion

The EB-5 visa includes derivative beneficiaries, allowing the principal investor's immediate family members to obtain conditional and subsequently unconditional permanent residence through the same petition.

Eligible derivative beneficiaries include the investor's spouse and any unmarried children under 21 years of age at the time of visa issuance or adjustment of status. Derivative beneficiaries receive the same conditional permanent resident status as the principal investor and must file jointly on Form I-829 to remove conditions.

Each derivative beneficiary requires separate visa documentation and fees. The per-country limitation applies to the total family unit, meaning derivatives from the same country as the principal investor count toward the country's annual visa allocation.

Derivative beneficiaries maintain their immigration status as long as the principal investor's petition remains valid. If the marriage to the principal investor terminates during the conditional period, the derivative spouse may file a waiver to remove conditions independently under certain circumstances.

Processing Timeline

EB-5 processing timelines vary based on multiple factors including petition type, investment category, country of chargeability, and USCIS workload. Current processing times should be verified through the USCIS website, as these fluctuate based on operational capacity and application volume.

Total time from initial petition to unconditional permanent residence typically ranges from four to seven years, though this can vary significantly based on individual circumstances and visa availability. Investors from countries without backlogs may complete the process more rapidly, while those from countries with high demand may experience extended waiting periods in the unreserved category.

Eligibility Criteria

EB-5 program eligibility requires investors to meet specific financial, legal, and regulatory criteria established by USCIS and codified in federal immigration law.

Financial Eligibility

Investors must possess and invest the required capital amount ($800,000 for TEA investments or $1,050,000 for standard investments) obtained through lawful means. Capital includes cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the investor, provided the investor is personally and primarily liable.

Source of Funds Documentation

Comprehensive documentation is required to establish the lawful source of investment capital. USCIS requires a clear path of funds demonstrating how the investor acquired the capital through legitimate means. Documentation may include tax returns, business records, property sale agreements, gift letters with donor documentation, inheritance records, and loan agreements showing the investor's personal liability.

Legal Requirements

Investors must be admissible to the United States under immigration law. Grounds of inadmissibility include criminal convictions, immigration violations, health-related issues, and national security concerns. EB-5 investors undergo the same background checks and security screenings as applicants in other visa categories.

Engagement Requirement

Investors must demonstrate engagement with the new commercial enterprise through day-to-day managerial control or policy formulation. For regional center investments, the engagement requirement is typically satisfied through the investor's position as a limited partner or similar structure that provides oversight without requiring active daily management.

Investment Structure

The investment must be in a new commercial enterprise, which includes businesses established after November 29, 1990, or enterprises established before that date that are substantially changed through the investment, resulting in at least a 40% increase in net worth or number of employees.

Conclusion

The EB-5 Immigrant Investor Program provides a structured pathway to US permanent residence through qualified investment in the American economy. The program's requirements, reformed through the EB-5 Reform and Integrity Act of 2022, establish clear standards for capital investment, job creation, and immigration processing.

Prospective investors should carefully evaluate investment opportunities, regional center designation status, TEA qualifications, and project viability. The program requires substantial capital at risk with no guaranteed financial or immigration outcome. Comprehensive due diligence regarding both investment and immigration aspects is essential.